ENDING 'CONFIRMATION WARS'

Carl TobiasTHE BALTIMORE SUN

When Barack Obama took the oath as president in January, the federal courts had vacancies in 55 of their 858 appellate and district judgeships, a number that has now risen to 98. Vowing to put the "confirmation wars behind us," President Obama, realizing the importance of promptly filling these openings, took special measures to facilitate judicial appointments.

Thus, the White House exercised care to ensure that its first nominee, Chief U.S. District Judge David Hamilton of Indiana, was very qualified, and referred to his selection as "setting a new tone." Despite those efforts, numerous SenateRepublicans opposed Judge Hamilton's elevation to the Seventh Circuit Court of Appeals. In fact, Senator Jeff Sessions of Alabama, the top Republican on the Judiciary Committee, attempted to orchestrate a filibuster. Two weeks ago, Democratic senators responded by filing a motion to prevent a filibuster that passed 70-29, and the Senate confirmed Judge Hamilton after frank debate. Although these machinations might seem to continue the long-standing confirmation wars, the developments could actually help end these perennial battles.

Mr. Obama made use of good practices to swiftly nominate Judge Hamilton. He expeditiously consulted the home-state senators before officially nominating, seeking the advice of Democrat Evan Bayh and Republican Richard Lugar, who enthusiastically supported Judge Hamilton. On March 17, Mr. Obama nominated the jurist, who received an April 1 hearing and a second hearing April 29, when Republicans protested that rapid scheduling left them insufficient preparation time. The Judiciary Committee approved Judge Hamilton on June 4, by a 12-7 party-line vote.

The White House chose Judge Hamilton as the initial nominee because he had compiled an excellent 15-year District Court record. The American Bar Association assigned him its highest rating. The president of the Indianapolis chapter of the conservative Federalist Society praised the nomination: "I regard Judge Hamilton as an excellent jurist with a first-rate intellect."

Notwithstanding this record, Republicans sharply criticized the nominee. Senator Sessions contended that "President Obama chose to set an aggressive tone by nominating Judge David Hamilton, a former board member and vice president for litigation of the Indiana chapter of the ACLU, as his first nominee." Mr. Sessions added that this "nomination is clearly controversial," asserting that Judge Hamilton has "drive[n] a political agenda," embracing the "empathy standard [and] the idea of a living Constitution."

After Mr. Sessions' attempt to filibuster the nomination was defeated (with 10 Republicans joining the Democratic Caucus' 60 members), a healthy debate on Judge Hamilton's record followed. A trenchant example was the judge's ruling on prayer at the Indiana statehouse. Mr. Sessions argued that the judge prohibited prayers in Christ's name but allowed prayers to Allah. Democrats placed the decision in context, locating it well inside Establishment Clause jurisprudence. Senator Bayh, for whom Judge Hamilton served as counsel when he was governor, responded "to a number of unfounded attacks [on Hamilton by observing that] he is not hostile to religion or Jesus Christ [and] was baptized and married by his father, a 40-year Methodist pastor." The Senate confirmed Judge Hamilton.

Despite the Sturm und Drang, the Hamilton confirmation offers hope for ending the confirmation wars. Mr. Obama must redouble his substantial efforts to consult with GOP and Democratic senators prior to actual nominations. Democrats should ensure comprehensive floor debates, principally as substitutes for filibusters. Republicans should be receptive to consultation by offering frank advice on candidates, even suggesting prospects whom they deem superior, and to thorough floor debates by eschewing filibusters and agreeing to votes.

Judge Hamilton's appointment might seem like a continuation of the protracted confirmation wars. However, the way the process worked in this case points to a way out of those battles. Republicans and Democrats should seize this opportunity to cooperate and fill the 98 vacancies, so that the federal courts may have the full complement of jurists needed to adequately deliver justice.

Carl Tobias is the Williams Professor at the University of Richmond School of Law. His e-mail is ctobias@richmond.edu.